Error in Calculating Guideline Range Reason for Reversal

In United States v. Todd, the Tenth held that the district court's failure to properly calculate the guideline range warranted reversal. The district court failed to take into account the admissions of the defendant that he obtained at least two ounces of meth per month over the year preceding the indictment, instead noting that the government had failed to prove the quantities by a preponderance of the evidence.

Relying largely on the uncontroverted admissions of the defendant, the probation department, the government, and the Tenth Circuit all agree that the defendant's guideline range should have taken into account the quantities acknowledged (and unrefuted) by the defendant himself. Because the guideline error resulted in a range of 77-96 months rather than 188-235 months, the court of appeals declines to find the error harmless, noting that "the district court expressly relied upon the lesser Guidelines range when passing sentence."

Though not central to the disposition of the appeal, the Tenth Circuit also addresses the defendant's argument that acquitted conduct should not factor into a court's sentence. The Court, while also noting that the case did not really present the issue of acquitted conduct, holds that Watts remains good law and acquitted conduct can be properly considered.

The Todd decision should provide a reminder to all defense counsel that admissions of prior conduct will be counted as relevant conduct. Also of interest is that Gorsuch authored the opinion in this case. He has taken the lead, so to speak, in parsing out the Tenth's view of post-Rita and post-Gall sentencing (he also authored the recent McComb decision), which could cause reason for concern among defense practitioners as his views appear to be extremely deferential to the government (and not just in a Gall-mandated deference).

District Court's Presumption of Reasonableness Deemed Harmless Error

In an unpublished decision today, the Tenth Circuit in U.S. v. Prieto-Chavez affirmed the defendant's sentence of 57 months despite the fact that the AUSA and the court both assumed that the presumption of reasonableness for a guideline sentence applied at the district court level. In fact, the district court judge stated that "basically there is a presumption of reasonableness that attaches to a correctly calculated guideline sentence" and that the "presumption of reasonableness has not been overcome by the defendant..."

The panel starts its analysis by noting that the district court erred by according a presumption of reasonableness to a guideline sentence as well as imposing a burden on the defendant to overcome that presumption. Because the defendant did not object, however, the court initially suggests that plain error review is appropriate. Interestingly, the court also reviews the district court's sentence under a harmless error standard as well since "a review of our caselaw both prior to an after Rita indicates that there was some confusion about the propriety of a district court's application of a presumption of reasonableness to a Guidelines sentence."

The panel, reviewing under both plain error and harmless error standards, holds that there was no reversible error. The decision is predicated in large part on the fact that the district court conducted a thorough review of the 3553(a) factors. The panel at least provides some analysis under the plain error standard, but it summarily concludes that the government met its burden under the harmless error standard.

There is little discussion about the possible impact on the defendant's sentence that the government's erroneous legal stance had, nor is there any substantive discussion about how a court operating under the assumption that the defendant bears the burden to show the advisory guideline unreasonable might plausibly consider a different sentence once it recognized its error. The harmless error analysis--if one can even call the summary remarks analysis--is disappointing at best and disingenuous at worst. The deference to the sentencing judge's consideration of 3553(a) factors is understandable given the Supreme Court's recent decisions, but this decision undermines the importance of procedural reasonableness espoused by the Court in Rita.

Rita's Reasonableness Requirement Reigns (for a day, anyway)

While the Tenth Circuit did not offer any published opinions today, there was interesting action in the Sixth Circuit. In a brief opinion in United States v. Peters, the Sixth held that the district court's cursory statement acknowledging the defendant's sentencing arguments was insufficient to satisfy Rita's demands. When the defendant presents nonfrivolous reasons for imposing a non-guideline sentence, the district court should address the party's arguments and explain why he rejected those arguments. The Peters panel found the sentencing judge's brief comments insufficient, and the case was remanded for re-sentencing.